STATE OF CALIFORNIA, PETITIONER V. CHARLES R. CARNEY
No. 83-859
In the Supreme Court of the United States
October Term, 1983
On Writ of Certiorari to the Supreme Court of California
Brief for the United States as Amicus Curiae Supporting Petitioner
TABLE OF CONTENTS
Interest of the United States
Statement
Introduction and summary of argument
Argument
A "motor home" is subject to the automobile exception
to the warrant requirement when the circumstances
indicate that it is being used primarily as a
transportation vehicle
A. The mobility of a vehicle traditionally has played
a significant role in assessing the reasonableness
of a warrantless probable cause search
B. The diminished expectation of privacy inherent in
any vehicle and the mobility of a motor home justify a
warrantless search of such a vehicle when it is being
used for transportation
Conclusion
QUESTION PRESENTED
Whether police officers violated the Fourth Amendment when they
conducted a warrantless search based on probable cause of a "motor
home" parked in a public parking lot adjacent to the street.
INTEREST OF THE UNITED STATES
This case presents an important issue regarding the scope of the
Warrant Clause of the Fourth Amendment and the so-called "automobile
exception" to the warrant requirement. Although this is a state case,
the Court's interpretation of the Fourth Amendment necessarily will
have a significant impact on federal law enforcement as well. Federal
officers frequently encounter in the course of their duties a wide
variety of trucks, vans, and campers designed for or capable of being
adapted to at least temporary "residential" use, and also favored as
means of transporting illicit drugs or illegal aliens. It is
important that these officers be provided a clear and workable rule to
guide them in dealing with such situations. The United States
therefore has substantial interest in the Court's resolution of the
constitutional issue presented here.
STATEMENT
On September 14, 1979, respondent was charged in an information
filed by the District Attorney of San Diego County, California, with
possession of marijuana for sale, in violation of Cal. Health & Safety
Code Sec. 11359 (West 1975). After moving unsuccessfully to suppress
the evidence at issue here, respondent changed his not guilty plea to
nolo contendere, and on January 8, 1980, he was sentenced to three
years' probation. The California Court of Appeal affirmed
respondent's conviction, but the California Supreme Court reversed
(Pet. App. A1-A51).
1. The facts adduced at the preliminary hearing, which formed the
evidentiary basis for the motion to suppress (see Pet. 3-4),
established that Agent Robert Williams of the Drug Enforcement
Administration was conducting surveillance of a suspected drug dealer
in downtown San Diego. Agent Williams noticed respondent, who seemed
out of place, approach and speak to a Mexican boy. Agent Williams
then watched as respondent and the youth walked to a nearby parking
lot and entered a Dodge Mini Motor Home parked there. They closed the
curtains of the vehicle, including one across the front window (Pet.
App. A3; Tr. 4-8, 10). /1/
Agent Williams had previously received information that that
particular vehicle was involved in drug activity, so he watched the
motor home /2/ and called additional agents. When the boy emerged
about an hour and a quarter later, the officers stopped and questioned
him. The boy told them that the occupant of the motor home had given
him some marijuana in exchange for being allowed to perform oral sex
on him. Pet App. A3-A4; Tr. 8-10, 14-22.
The youth then returned with the agents to the motor home, where,
at the agents' request, he knocked on the door. Respondent opened the
door and stepped out. The agents identified themselves, and one of
them, Agent Clem, stepped up on one step and looked inside the motor
home to see if anyone else was there. Agent Clem then saw in plain
view on a table just inside the doorway a bag of marijuana, some other
plastic bags, and a scale. Agent Williams then arrested respondent,
seized the motor home, and took photographs of its interior. The
vehicle subsequently was driven to the Narcotics Task Force office,
where an inventory search revealed additional marijuana in a cupboard
and in the refrigerator. Pet. App. A4-A5; Tr. 23-35, 72-73.
2. The trial court denied the motion to suppress the evidence found
in the vehicle, holding that the agents had probable cause and that
the "automobile exception" therefore authorized a warrantless search.
See Pet. App. A5-A6. The conviction was affirmed by the intermediate
appellate court (Pet. 4), but the California Supreme Court reversed,
holding that the search violated the Fourth Amendment.
The court did not take issue with the trial court's finding that,
at the time they first entered the vehicle, the agents had probable
cause to arrest respondent and to believe that the vehicle contained
evidence of a crime. The court did find, however, that the failure to
obtain a search warrant violated the Fourth Amendment. Specifically,
the court held that the "so-called 'automobile exception'" to the
warrant requirement was not applicable here because of the heightened
privacy considerations inherent in a campber or motor home as opposed
to an ordinary automobile (Pet. App. A9-A31). The court explained
that the "mobility" of a vehicle "is no longer the prime justification
for the automobile exception; rather, 'the answer lies in the
diminished expectation of privacy which surrounds the automobile'"
(id. at A14, quoting United States v. Chadwick, 433 U.S. 1, 12
(1977)). Because it concluded that a "motor home" was more like a
home than an automobile with respect to an individual's reasonable
expectation of privacy therein, the court held that, in the absence of
some other special reason for dispensing with a warrant, a police
officer is not permitted to search on the basis of probable cause
without a warrant (Pet. App. A14-A30). /3/
Justice Richardson dissented (Pet. App. A46-A51). He explained
that the majority's broad pronouncements with respect to "motor homes"
appeared to cover a wide spectrum of vehicles, some of which involve
little, if any, more privacy expectation than an automobile (id. at
A47-A48). Moreover, classifying a vehicle (such as a van) as either
an automobile or a "motor home" depending on the particular
circumstances, which would be a necessary task under the majority's
decision, would be a difficult task for a police officer (id. at A48).
Instead, Justice Richardson concluded that the treatment of a "motor
home" should depend on whether the facts indicate that the vehicle is
currently being used primarily as a residence or not (id. at A49-A50).
Because the camper here -- parked next to the street in a public
parking lot -- apparently was being used more as a vehicle than as a
residence, Justice Richardson concluded that the warrantless search
was valid under the "automobile exception."
INTRODUCTION AND SUMMARY OF ARGUMENT
The California Supreme Court's conclusion that a "motor home" is
indistinguishable from a permanent residence in a building for
purposes of the Warrant Clause rests on two faulty premises. First,
the court errs in finding that the mobility of a vehicle, and
consequent difficulty in securing it, plays virtually no role in the
rationale for the established "automobile exception" and hence is
irrelevant to the question whether resort to a warrant is necessary to
conduct a probable cause search. Second, the court overlooks
important residences -- in assessing the degree of privacy that an
individual can reasonably expect in a motor home. The court's failure
to consider these relevant factors results in a limitation on
effective law enforcement that is unjustified by Fourth Amendment
policies. Finally, the court's decision fails to identify with any
precision what attributes of a vehicle change its character
sufficiently to justify a warrant requirement. Thus, the decision
fails to provide a clear and readily administrable rule for police
officers to follow and threatens to open a Pandora's box of litigation
over what types of vehicles or alterations made to vehicles qualify
for "motor home" status.
Instead, the court should have recognized: (1) that the basis for
the automobile exception is two-fold -- both the reduced expectation
of privacy in a vehicle and the difficulties engendered by its
mobility justify relaxation of the warrant requirement; (2) an
individual's expectation of privacy in a vehicle, even one that is
capable of being used for residential purposes, cannot be equated with
that of a permanent residence because of the public nature of
vehicular travel and the regulatory intrustions and inspections to
which all vehicles are subjected; and (3) that the competing
interests should if possible be balanced by application of clear and
readily administrable principles. When a vehicle subject to state
motor vehicle registration laws is stopped on a public street or
parked in a location inappropriate for residence, it is serving
primarily a transportation function even if it can be characterized as
a "motor home" and can be used as a residence. It is our submission
that, in such circumstances, it should be subject to warrantless
search on the basis of probable cause like other vehicles.
ARGUMENT
A "MOTOR HOME" IS SUBJECT TO THE AUTOMOBILE EXCEPTION TO THE WARRANT
REQUIREMENT WHEN THE CIRCUMSTANCES INDICATE THAT IT IS BEING USED
PRIMARILY AS A TRANSPORTATION VEHICLE
This case arises at the somewhat murky intersection between two
well-settled doctrines of Fourth Amendment law: that, in the absence
of consent or exigent circumstances, police officers are forbidden to
conduct a search of a dwelling without antecedent judicial approval in
the form of a search warrant; and that it is permissible to conduct
warrantless probable cause searches of vehicles, vessels, and
aircraft. While neither the opinion of the California Supreme Court
nor the transcript of the hearing affords a particularly clear picture
of the specific characteristics of respondent's "motor home," it is
reasonably clear that it possessed some attributes of a residence not
customarily possessed by automobiles, while at the same time, unlike
an ordinary dwelling, it was fully mobile.
We acknowledge that there is some point at which a motor home, by
virtue of its design and visible use -- for instance, a large motor
home manufactured with kitchen facilities and sleeping accommodations
that is located at a campsite and connected to plumbing and electrical
attachments -- should be afforded the protections of a dwelling even
though it remains potentially mobile. Conversely, it seems clear to
us that there are many vehicles, such as small vans, that, although
capable of being adapted to at least temporary residential use, are
designed and customarily used primarily for transportation purposes
and should not be differentiated from automobiles for Fourth Amendment
purposes. In between is a substantial array of vehicles that more or
less lend themselves to occasional residential, as well as
transportation, uses. The task of the Court is to enunciate a
standard that gives due regard to the competing interests underlying
the relevant Fourth Amendment doctrines while affording a manageable
standard to guide law enforcement activities. The California Supreme
Court has not struck the correct balance.
A. The Mobility Of A Vehicle Traditionally Has Played A Significant
Role In Assessing The Reasonableness Of A Warrantless Probable Cause
Search
The "automobile exception" was first recognized by this Court in
Carroll v. United States, 267 U.S. 132 (1925). In that case, federal
agents had evidence that two men frequently transported bootleg liquor
in a particular car between Grand Rapids and Detroit, Michigan. When
the agents unexpectedly encountered those men driving that car along
that route, they stopped the car and searched it, finding 68 bottles
of liquor hidden inside the seat backs. This Court held that the
warrantless search of the car, as long as it was based upon probable
cause, was reasonable under the Fourth Amendment. 267 U.S. at
147-156. The Court found that Congress had drawn "a distinction
between the necessity for a search warrant in the searching of private
dwellings and in that of automobiles and other road vehicles," and
that such a distinction was consistent with the Fourth Amendment. Id.
at 147. In an extensive opinion, the Court traced the historical
basis for this distinction to legislation passed contemporaneously
with the adoption of the Fourth Amendment. Id. at 150-153. These
statutes consistently recognized (id. at 153):
a necessary difference between a search of a store, dwelling
house or other structure in respect of which a proper official
warrant readily may be obtained, and a search of a ship, motor
boat, wagon or automobile, for contraband goods, where it is not
practicable to secure a warrant because the vehicle can be
quickly moved out of the locality or jurisdiction in which the
warrant must be sought.
Thus, the initial justification for the establishment of the
automobile exception clearly was the impracticability of obtaining a
warrant because of the ready mobility of vehicles. See generally
United States v. Ross, 456 U.S. 798, 804-809 (1982).
In Chambers v. Maroney, 399 U.S. 42 (1970), the Court reaffirmed
the principle of Carroll that a warrantless search of a vehicle is
permitted because "the opportunity to search is fleeting since a car
is readily movable." Id. at 51. The Court rejected the suggestion
that the vehicle should have been seized on the basis of probable
cause, but not searched until a warrant could be obtained, reasoning
that, in terms of the practical consequences, there was no
constitutional difference between an immediate search without a
warrant and the vehicle's immobilization until a warrant could be
obtained. Id. at 51-52. Thus, as the Court recently explained again
in Ross, the "impracticability of securing a warrant in cases
involving the transportation of contraband goods" traditionally has
provided part of the reason for permitting warrantless searches of
vehicles. 456 U.S. at 806. "Given the nature of an automobile in
transit, the Court (has) recognized that an immediate intrusion is
necessary if police officers are to secure the illicit substance." Id.
at 806-807. The rule permitting a warrantless search is one that
applies to the generality of situations and does not depend on an
assessment of the degree of exigency caused by the vehicle's
immobility in a particular factual context. See id. at 807 n.9;
Colorado v. Bannister, 449 U.S. 1 (1980).
Subsequent to Carroll and Chambers, however, the Court also
identified a second justification for the automobile exception,
namely, the reduced expectation of privacy that an individual has in
the contents of an automobile. As the Court explained in United
States v. Chadwick, 433 U.S. 1, 12 (1977) (quoting Cardwell v. Lewis,
417 U.S. 583, 590 (1974) (plurality opinion)):
One has a lesser expectation of privacy in a motor vehicle
because its function is transportation and it seldom serves as
one's residence or as the repository of personal effects * * * .
It travels public thoroughfares where both its occupants and
its contents are in plain view.
Because of the reduced risk that a police officer's mistaken
assessment of probable cause will result in a serious privacy
intrusion, there is insufficient need for the prophylactic measure of
a warrant in connection with a vehicle search. See also United States
v. Knotts, No. 81-1802 (Mar. 2, 1983), slip op. 5; Rakas v. Illinois,
439 U.S. 128, 153-155 (1978) (Powell, J., concurring); United States
v. Martinez-Fuerte, 428 U.S. 543, 561 (1976); Cady v. Dombrowski, 413
U.S. 433, 441 (1973).
While the Court in recent years has focused on the reduced
expectation of privacy in a vehicle as an important basis for the
automobile exception to the warrant requirement, it is clear that the
Court has not deviated from the view that the mobility of a vehicle
remains a significant factor in assessing the need for a warrant. To
the contrary, the Court has characterized the basis for the automobile
exception as a "twofold" rationale. See South Dakota v. Opperman, 428
U.S. 364, 367-368 (1976); see also Arkansas v. Sanders, 442 U.S. 753,
761 (1979); United States v. Chadwick, 433 U.S. at 12-13; Cady v.
Dombrowski, 413 U.S. at 442. Thus, the California Supreme Court's
exclusive focus on the expectation of privacy in a motor home, while
ignoring its inherent mobility, significantly diverges from the
analysis suggested by this Court's decisions.
B. The Diminished Expectation Of Privacy Inherent In Any Vehicle And
The Mobility Of A Motor Home Justify A Warrantless Search Of Such A
Vehicle When It Is Being Used For Transportation
The California Supreme Court aptly described (Pet. App. A17) the
issue in this case as a "hybrid" in terms of Warrant Clause
jurisprudence. A motor home plainly is a vehicle and shares most of
the characteristics of an automobile that make a warrantless search of
an automobile reasonable under the Fourth Amendment; at the same time
it possesses some of the attributes of a permanent residence that
traditionally have justified the imposition of a warrant requirement.
Whether a warrant is required to search a motor home on the basis of
probable cause is a difficult question that explores the limits of the
automobile exception. Thus, we do not quarrel with the California
Supreme Court's recognition that a motor home should not mechanically
be treated the same as an automobile for these purposes simply because
it is mobile. But, by the same token, the court erred in concluding
that a motor home should automatically be treated the same as a
residence simply because it can be used as a living accommodation. In
our view, motor homes are so similar to automobiles and other vehicles
in important respects that, in certain well-defined circumstances, it
is reasonable to permit them to be searched without a warrant.
It is undeniable that greater privacy interests may be implicated
by a search of a camper or motor home than of a conventional
automobile. When a vehicle is used in part as a place to live rather
than exclusively as a means of transportation, a search is more likely
to reveal personal effects that implicate significant privacy
interests. And a "motor home" may have features that enable
individuals to shield the interior from the view of outsiders more
effectively than in a conventional automobile. /4/ Given the
importance of the expectation of privacy factor to the rationale
underlying the automobile exception, these factors suggest that the
doctrine should not uncritically be applied to motor homes simply
because they are movable vehicles.
There are important countervailing considerations, however, that
strongly indicate that warrantless searches of motor homes should be
permitted. First, an individual's expectation of privacy in a vehicle
is necessarily limited, regardless of the use to which it is put; if
a motor home is more "private" in some sense than a conventional
automobile, it nonetheless cannot be equated with a permanent
residence. See Rakas v. Illinois, 439 U.S. at 154 (Powell, J.,
concurring). This Court has emphasized repeatedly that all motor
vehicles are subject to a wide range of regulatory intrusions and
inspections, which necessarily circumscribe the degree of privacy that
can be expected. See United States v. Chadwick, 433 U.S. at 12-13;
South Dakota v. Opperman, 428 U.S. at 367-369; Cady v. Dombrowski,
413 U.S. at 441-442. In addition, there is a significant possibility
that a vehicle can become disabled or involved in an accident on the
public highways, necessitating a privacy intrustion by the police.
These considerations apply with equal weight to "motor homes" (except
where they are affixed to a permanent site) as to conventional
automobiles. /5/ Thus, even focusing on the expectation of privacy
rationale alone, it is apparent that the California Supreme Court's
treatment of motor homes as indistinguishable from ordinary residences
is flawed. So long as a motor home is susceptible to routine police
contact because of state inspection and traffic laws, one cannot
reasonably expect the same degree of privacy in such a vehicle as in a
permanent residence or even a motel room.
Second, the mobility aspect of the automobile exception rationale
fully applies to motor homes. To the extent it is impracticable to
obtain a warrant before searching a vehicle because of its mobility,
the decision below will significantly hamper law enforcement officers
in their ability to seize contraband and evidence when they have
probable cause to believe that it is contained in a vehicle that can
be characterized as a "motor home." Presumably, when the police have
such probable cause, they will have to either let the vehicle go on
its way or attempt to seize and immobilize it pending application for
a warrant. Putting the officers to this choice is at odds with the
consistent thread of the automobile exception decisions, which
recognize that the Constitution does not express a preference for
immobilization of a car pending a warrant search over conducting an
immediate warrantless search. See Ross, 456 U.S. at 821 n.28;
Chambers, 399 U.S. at 51-52. In addition, it may well be that seizing
the vehicle is not a feasible option at all. The Court has recognized
that it is not always possible for police to seize and securely hold a
vehicle (see Chadwick, 433 U.S. at 13 n.7; Opperman, 428 U.S. at 379
(Powell, J., concurring)), and this is particularly true of campers,
which may be oversized and oddly shaped.
Moreover, in important respects the interests of the suspect
himself may be harmed by a rule prohibiting a warrantless search. In
cases where the search will not uncover any evidence (which are, after
all, those cases for which the protections of the Warrant Clause are
most useful), a suspect may be unnecessarily deprived of his property
for a substantial period of time while a warrant is sought. Indeed,
in the common situation where the probable cause to believe that
contraband will be found in the vehicle also provides the basis for
arresting the suspect, a warrant requirement may significantly prolong
the period during which the individual will be subject to detention.
In these situations, especially where the vehicle does not in fact
contain contraband and a search would therefore eliminate the basis
for arrest, it would ordinarily be preferable from the suspect's
viewpoint that an immediate warrantless search be conducted that will
exonerate him and spare him the undesirable consequences of continuing
suspicion pending application for a warrant. /6/
It is important not to minimize the problems for law enforcement
agencies that will be occasioned by the decision below. The larger
capacity and enclosed space of the type of vehicles that the
California court has carved out of the automobile search doctrine may
make them suitable for use as temporary residences, but it also makes
them especially convenient and effective instruments for smuggling
contraband or illegal aliens. /7/ The problems created for the police
are exacerbated by the broad spectrum of vehicles potentially covered
by the court's opinion, which is bound to leave officers uncertain as
to their obligations. Because of its focus on the privacy
implications of temporary residential use, the California Supreme
Court's decision would appear to apply to any vehicle used for living
purposes. As Justice Richardson points out in his dissent, the
holding therefore goes far beyond large recreational vehicles designed
as motor homes and extends to vans and pickup trucks used for sleeping
and perhaps even to ordinary trucks. See Pet. App. A46-A47. Under
the decision below, the courts could be faced with a new and
intractable area of litigation -- whether particular measures taken by
a vehicle owner (such as putting curtains on the windows or a cap on a
pickup truck) make the vehicle sufficiently like a home to require
imposition of a warrant requirement.
As a practical matter, moreover, the police are ill-equipped to
deal with this type of amorphous, fact-specific legal area that would
be clarified only slowly on a case-by-case basis and would always
remain to some degree uncertain and unpredictable (see, e.g., Arkansas
v. Sanders, 442 U.S. at 771-772 (Blackmun, J., dissenting)); rather,
they are best able to perform their duties in an efficient and
constitutional manner if there exists a relatively clear and easily
administrable set of rules to guide them. See, e.g., Oliver v. United
States, No. 82-15 (Apr. 17, 1984), slip op. 9-10; New York v. Belton,
453 U.S. 454, 458 (1981). The imprecision of the decision below is
calculated to induce cautious police officers to be overly restrictive
in assessing their authority, perhaps leading them to refrain from
conducting a warrantless search of almost any vehicle different from a
conventional automobile. This would exclude a substantial percentage
of the vehicles on the road from the confines of the automobile
exception and, more important, would provide drug smugglers with an
easy and inexpensive way to avoid on-the-spot probable cause searches
-- by using a van or pickup truck or perhaps simply by putting up
curtains on a car.
Thus, there are serious problems with the refusal of the court
below to extend the "automobile exception" under any circumstances to
a vehicle that is usable for residential purposes. It is significant
to note in this connection that this Court has never suggested that
the exception is limited only to automobiles. In Carroll, the Court
equated ships, wagons, and automobiles (267 U.S. at 153) in
recognizing that it was not appropriate to impose the same warrant
requirement on the search of vehicles as on the search of homes. The
Court's review of the historical development in this area showed that
wagons and ships could be searched without a warrant, even though they
were used as temporary residences just as surely as motor homes are.
See also United States v. Villamonte-Marquez, No. 81-1350 (June 17,
1983). And, since Carroll, the Court has continued to recognize that
the exception to the warrant requirement for vehicles is not
restricted to automobiles. See, e.g., Cardwell v. Lewis, 417 U.S. at
589 (plurality opinion); Chambers v. Maroney, 399 U.S. at 48. The
fact that a vehicle theoretically may be used as a residence does not
alter the basic fact that "its function is transportation." Cardwell
v. Lewis, 417 U.S. at 590 (plurality opinion).
This is not meant to suggest that the residential function of motor
homes must be ignored and that they must be treated precisely like any
other vehicle simply because they are mobile. It does suggest,
however, that the motor home situation is one that requires an
accommodation between society's interest in effective law enforcement,
which is reflected in a rule permitting warrantless searches, and
protection of the individual's privacy interest, which is reflected in
the warrant requirement. This accommodation lies between the two
extremes of either never or always permitting a warrantless search of
a motor home and can, we believe, be struck in a fashion that is
capable of being understood and applied by the police without
seriously compromising the relevant interests.
In our view, it is important to draw a distinction between a motor
home that is primarily functioning as a vehicle and one that is
primarily functioning as a residence. When a motor home is clearly
being used as a residence, such as when it is stationed at a
campground site or otherwise hooked up to utility connections, the
rationale for applying the automobile exception is outweighed by the
enhanced privacy expectation inherent in its residential use. By the
same token, a "mobile home" that is designed to be affixed to a
relatively permanent site and is not subject to state motor vehicle
registration laws is not really a "vehicle" and ought not to be
subject to warrantless search even when it is being transported on the
highways to a permanent site. However, a motor home that is treated
by the state as a vehicle for regulatory purposes and that is come
upon by the police when it is being used as a vehicle should be
retained within the automobile exception.
When a motor home is being used in a way that its "primary function
is transportation" (United States v. Chadwick, 433 U.S. at 13), the
rationale underlying the exception to the warrant requirement is not
defeated by the possibility that the vehicle can also be used as a
residence. For example, when such a vehicle is stopped while
traveling on a public highway or is found parked in a location
inappropriate for residence, it is primarily a vehicle for
transportation and should be treated as such under the Fourth
Amendment. In such a situation, there are strong societal interests
in dispensing with the warrant requirement; at the same time, the
individual's privacy interest is limited because "individual's always
(have) been on notice that movable vessels may be stopped and searched
on facts giving rise to probable cause that the vehicle contains
contraband, without the protection afforded by a magistrate's prior
evaluation of those facts" (Ross, 456 U.S. at 806 n.8). This limited
privacy interest is adequately protected by the requirement that
officers have probable cause before conducting a search. See id. at
807 n.9. /8/
Applying these principles to this case, it is our view that the
court below erred. The facts do not indicate that the motor home here
was being used even temporarily as a fixed residence. Rather, it was
parked in a public place adjacent to downtown streets and thus
apparently was functioning primarily as a vehicle for transportation.
In these circumstances, it was reasonable within the meaning of the
Fourth Amendment for the police officers to search it on the basis of
probable cause without a warrant.
CONCLUSION
The judgment of the Supreme Court of California should be
reversed.
Respectfully submitted.
REX E. LEE
Solicitor General
STEPHEN S. TROTT
Assistant Attorney General
ANDREW L. FREY
Deputy Solicitor General
ALAN I. HOROWITZ
Assistant to the Solicitor General
KATHLEEN A. FELTON
Attorney
JUNE 1984
/1/ "Tr." refers to the transcript of the preliminary hearing of
September 5, 1979.
/2/ The opinion below refers to the vehicle involved in this case
as a "motor home," without attempting to define the meaning of that
term and without descrbing in detail the particular characteristics of
the vehicle. As we argue below, there are substantial practical
difficulties in attempting to draw a line between various kinds of
vehicles on the basis of their degree of "homeness" in order to
administer the legal principle on which the decision below rests. We
use the term "motor home" without intending to concede that the
vehicle respondent was using is properly classified as the functional
equivalent of a fixed residence.
/3/ The court also rejected the contention that the initial search
by Agent Clem was justifiable as a "protective sweep" (Pet. App.
A31-A46).
/4/ The nature and effectiveness of these features will vary
depending upon the type of vehicle. Large motor homes designed for
use as a residence for an extended period of time will have built-in
features to prevent outsiders from looking in. But almost any
vehicle, even one not originally designed for use as a residence at
all, can be altered to increase the privacy of the occupants to some
degree, for example by installing curtains.
/5/ Moreover, the physical privacy aspect of some vehicles that
would apparently be encompassed as "motor homes" by the court below
does not approach that of the home. Vans and pickup trucks with
simple caps are not substantially more private in customary use than
an ordinary passenger car. Even vehicles that are originally designed
with heightened privacy in mind are necessarily less private than
houses or apartments. Because vehicles travel and often are parked on
the public thoroughfares, there is nothing to prevent inquisitive
outsiders from approaching them much more closely than they could a
house. Those measures that ordinarily are taken to cover up the
windows in a vehicle are not generally sufficient, as a practical
matter, to protect fully against intrusion by the curious outsider who
actually approaches the vehicle. See, e.g., United States v.
Lovenguth, 514 F.2d 96, 98 (9th Cir. 1975).
/6/ It is not a complete answer to this problem that the suspect
can consent to a search of the vehicle if he desires to avoid the
delay involved in obtaining a search warrant. Cf. Arkansas v.
Sanders, 442 U.S. at 764 n.12. A police officer is under no
obligation to proceed with an immediate search simply because the
suspect has consented to it. Given the possibility that an apparent
consent to search will later be determined to have been given
involuntarily (see generally Schneckloth v. Bustamonte, 412 U.S. 218
(1973)), it will often be prudent for an officer to decline to conduct
a consent search if he believes he has probable cause and knows that a
warrantless search would be held unlawful if the consent is
successfully attacked.
/7/ A sampling of the reported cases involving searches of campers
confirms that they often are used for hauling large loads of drugs,
particularly marijuana, or illegal aliens. See, e.g., United States
v. Cortez, 449 U.S. 411 (1981); United States v. Salinas-Calderon,
728 F.2d 1298 (10th Cir. 1984); Sharpe v. United States, 660 F.2d 967
(4th Cir. 1981), vacated, 457 U.S. 1127 (1982), on remand, 712 F.2d 65
(1983), petition for cert. pending, No. 83-529; United States v.
Almand, 565 F.2d 927 (5th Cir.), cert. denied, 439 U.S. 824 (1978);
United States v. Curtis, 562 F.2d 1153 (9th Cir. 1977), cert. denied,
439 U.S. 910 (1978); United States v. Lovenguth, 514 F.2d 96 (9th
Cir. 1975); United States v. Cusanelli, 472 F.2d 1204 (6th Cir.),
cert. denied, 412 U.S. 953 (1973).
/8/ Our approach would thus draw the line between "vehicles" and
"residences" not on the basis of the attributes of the vehicle, but on
the basis of whether it is at least temporarily affixed to a site or
is fully mobile. If this Court concludes that such a standard
provides insufficient protection to the privacy interest at stake in
this class of cases, it must then adopt an approach that attempts to
draw distinctions among different kinds of vehicles. If that approach
is taken, we would suggest that the most appropriate place to draw the
line is between vehicles built specifically for use as a living
accommodation -- for example, with features such as built-in beds and
kitchen facilities -- and other vehicles such as vans and camper
trucks that are designed primarily for transportation but are capable
of being used or converted to use as a place to live. In addition to
the reasons given in the body of this brief, we have misgivings about
this approach because, while it is more workable than the California
court's broad, unfocused conception of a "motor home," it would still
create problems of definition for the officer in the field, given the
wide spectrum of vehicles that he may encounter in the course of his
duties. See pages 15-17, supra. We maintain that the best way to
establish a sound, bright-line rule is through the approach outlined
in the body of this brief; any attempt to focus on the nature of the
vehicle itself, including the approach taken by the court below,
rather than our proposal to focus on whether the circumstances
indicate that the vehicle is being used primarily as a means of
transportation, inevitably will lead to litigation over precisely
where the line should be drawn. We note only that, if the Court
determines that some distinction should be drawn among different types
of vehicles, the distinction that best accommodates society's interest
in effective law enforcement with individual privacy expectations is
one that excludes from the automobile exception a narrow category of
vehicles that are specifically designed and built for use as mobile
residences. If the Court adopts this approach, it would be
appropriate to remand this case for development of the record
concerning the nature and characteristics of the vehicle involved
here.